PALAKKEL CHIRUKANDAN Vs. SPECIAL TAHSILDAR (LA) LAND ACQUISITION

JUDGEMENT

(1.) The properties belonging to the petitioners in the captioned Writ Petitions, having different extent and covered by different notifications issued for different purposes, were acquired under the Land Acquisition Act, 1894 (for short 'L.A. Act') after following the procedures for acquisition. Whether an application for re-determination of compensation under S. 28A of the L.A. Act can be maintained only if it is made on the basis of an award of the Court on a reference under S. 18 of that L.A. Act This question carrying a cleavage of opinion involves in all these cases and therefore, they are taken up for joint hearing and disposal. For the disposal of these cases, narration of facts of each case is uncalled for and hence, the general issue alone need be stated succinctly. In respect of the properties acquired from the petitioners, awards under S. 11 of the L.A. Act were passed in their favour. None of the petitioners filed effective application for enhanced compensation under S. 18 of the L.A. Act. The petitioners filed applications for re-determination of compensation under S. 28A of the L.A. Act and such applications were considered and rejected holding that the judgments relied on rather, the awards relied on, by the respective applicants for the purpose of seeking re-determination of compensation were not passed on a reference under S. 18 of the L.A. Act and therefore, in the light of the provisions under S. 28A of the L.A. Act and also of decision of this Court in Haji A. Abdul Rashid v. Spl. Tahsildar, 2008 1 KerLT 974 re-determination of compensation is impermissible under S. 28A of the L.A. Act. In fact, it was held that an award passed on a reference to Court under S. 28A(3) of L.A. Act could not be the basis for re-determination of compensation under S. 28A of L.A. Act. Aggrieved by the same, they filed applications for reference to Court under S. 28A(3) of the L.A. Act. In W.P.(C). Nos. 25968 of 2013, 7563 of 2011 and 25939 of 2013, those applications were also rejected assigning the same reasons. In other cases, the applications filed under S. 28A(3) of the L.A. Act are pending. The learned Government Pleader, supporting the impugned orders, submitted that a re-determination of compensation under S. 28A could be made only based on an award of the Court passed on a reference under S. 18 of the L.A. Act in the light of the decision in Haji A. Abdul Rashid's case . The contention of the petitioners is that the reason assigned in the impugned orders for rejecting applications under S. 28A as also assigned for rejecting the applications under S. 28A(3) in W.P.(C). Nos. 7563 of 2011, 25939 of 2013 and 25963 of 2013 is absolutely unsustainable in view of an earlier decision of this Court in Joseph v. District Collector, 2004 2 KerLT 1029 holding a contra view.

(2.) I have heard the learned counsel for the petitioners in the captioned Writ Petitions and also the learned Government Pleader.

(3.) As noticed hereinbefore, the reason for rejection of the applications under S. 28A as also the applications under S. 28A(3) in some of the cases mentioned hereinbefore, is that the concerned applicant sought for re-determination of the amount of compensation under S. 28A, not based on an award passed on a reference made under S. 18 of the L.A. Act whilst based only on award passed on a reference under S. 28A(3) of the L.A. Act. As noticed hereinbefore, the said order is in tune with the decision in Haji A. Abdul Rashid's case but, it goes against the decision in Joseph's case . In Joseph's case , this Court held that to maintain an application under S. 28A for re-determination of amount of compensation, it is not necessary that the Court award relied on by the applicant should be one passed on a reference made under S. 18 of the L.A. Act. In Haji A. Abdul Rashid's case , rendered later, another learned Judge held that an application under S. 28A of L.A. Act for re-determination of amount of compensation could be made only based on a judgment of reference court under S. 18 of the L.A. Act. Thus, it is obvious that there is a direct conflict between these two decisions on the same point. In the said circumstances, the learned counsel for the petitioners sought for a reference of the issues for consideration by a Division Bench. However, in the light of the decision of a Division Bench of this Court in District Collector v. Muhammad Kunhi,2012 4 KerLT 360, I do not think it appropriate or necessary to refer the issue for such consideration. To ascertain the position whether the issue involved in these cases was virtually the very issue considered by the Division Bench in Muhammad Kunhi's case , only a glance at paragraphs 1 and 7 of the said decision is required. Paragraphs 1 and 7 therein, in so far as they are relevant, read thus:-